How Trinidad and Tobago played a key role in India’s ongoing LGBT hearing

Section 377 was introduced by the British in India in 1861, modelled on the infamous Buggery Law.

The power of the privacy ruling is probably why few opponents have entered the case this time.

In the end, it happened amazingly fast. After the 18 years it has taken so far to fight the Section 377 case, for decriminalisation of consensual same-sex relations, the lawyers and activists involved had thought that the hearings before the constitutional bench of the Supreme Court would take a few weeks. It was almost entirely done in three days, with a final 90-minute session allocated for Tuesday.

It was startling. Senior counsel seemed spring-loaded, popping up and down, making arguments at break-neck speed, compressing speeches, discarding points and leaving more extensive examples to written submissions. And this wasn’t because of lack of interest from the judges. Repeatedly during the hearings, the five judges chimed in with remarks that showed how engaged they were with the issue.

The contrast couldn’t have been greater with the last round of extensive hearings on the issue in the Supreme Court, which resulted in the verdict of Koushal versus Naz in 2013 that reversed the earlier decision of the Delhi High Court decriminalising homosexuality. In the hearings that led to the Koushal verdict, the two judges of that bench let the counsel speak at length but seemed manifestly disinterested, even hostile to the issue.

Perhaps the most profound change was noted by Vivek Divan, one of the lawyers who had helped kick-start the case all those years back. “What’s been interesting is that locus seems not in the least to be a concern,” he marvelled. The reference was to locus standi — meaning, whether the petitioners had suitable grounds to be in court — and this was an issue that has bedevilled the case from the start and contributed to its delays.

In the aftermath of last week’s high-speed hearings, some speculated on why it has taken so long. One commentator wondered if this was simply because the activists had wanted publicity, and to complicate it makes tackling the potential spread of HIV through unprotected gay sex harder.

The government could simply have solved this by amending the law, but instead fell back on jargon. Instead of using words like gay, bisexual or transgender, it settled on “men who have sex with men”, MSM for short, and rolled out programmes to treat this bureaucratic sexuality. The limitations of this were sharply thrown up in 2001 when the police raided the Lucknow premises of an NGO involved in such a programme. Its director, Arif Jafar, was charged under Section 377. He would spend over 40 days in prison, in traumatic conditions.

HIV prevention was then important in itself and could also serve as a proxy for the larger issue of consensual same-sex relations. An initial challenge on this basis was, in fact, filed in 1994 by AIDS Bedbhav Virodhi Andolan, but could not be followed up at that time. In 2001, a fresh challenge was filed in the Delhi High Court by Naz Foundation (India), an organisation founded by activist Anjali Gopalan, that was working on HIV-related issues.

But two years later, in 2003, the high court threw out the petition on the grounds that Naz had no locus in the issue — what standing did a public interest litigation (PIL) have to challenge Section 377, asked the court, in a clear attempt to avoid dealing with the case. This decision was appealed to the Supreme Court, which finally agreed that the Naz PIL did have sufficient grounds to be heard by the Delhi High Court. The case was back, but after substantial delay due to the question of locus.

By 2008-09, the court was ready to hear the case again, but this is where another concern came up. LGBT people are often asked why they are so concerned with Section 377 which, according to its actual wording, deals with “sodomy and other acts against the order of nature.” It isn’t illegal to be gay in India, this argument suggests, but only a particular sexual act, and how often is that prosecuted anyway? This ignores the fact that Section 377 is definitely used — anecdotal evidence and media reports suggest as much. But it happens in small towns or with people who are too poor, humiliated and scared to reach out for help. They either suffer in silence or, even more often, settle with their accusers not to actually prosecute the law. Section 377 is beloved by blackmailers for exactly the implicit threat it allows them to wield, without any record.

But beyond this actual use, the meaning of Section 377 has also expanded, ever since it was implemented as part of the Indian Penal Code of 1860. In cases like Queen-Empress versus Khairati (1884), courts have gradually expanded its scope from actual sodomy to being the kind of person likely to commit it. You can live as an LGBT person in India, but always with the tension of someone — an employer, landlord, colleague, family member — finding it out and threatening to use it against you. The actual law, in that sense, stands in for being LGBT in general, but understanding this requires a level of empathy or imagination — and this Justices AP Shah and S Muralidhar, who wrote the high court verdict of 2009, proved to have. “A person cannot leave behind his sense of gender or sexual orientation at home,” they wrote, refuting the idea that homosexuals could lead peaceful, closeted lives in India. Their decision freed LGBT from the threat of Section 377, based on the basic principles of equality and justice in the Constitution.

Justices GS Singhvi and SJ Mukhopadhaya, who struck down this decision in the apex court in 2013, proved to have no such empathy or imagination. In contrast to the generous, well-reasoned and beautifully written high court verdict, they produced one that was, as the late Justice Leila Seth put it, “untempered by any sympathy for the suffering of others.” And, shockingly, they implicitly delivered a victory to opponents of decriminalisation whose locus in the matter has never been clear.

Because the question of locus should apply both ways. Giving LGBT people rights doesn’t take away rights from anyone else, but this hasn’t prevented opponents from weighing in with a variety of vague claims of social damage. Suresh Kumar Koushal, in whose name the Supreme Court verdict was written, made lurid allegations of threats to national security because lonely jawans would start having sex with each other. Such a theory seems more derived from pornographic movies than any reality, yet it was petitions like this which prevailed.

Koushal was back in court last week to defend his winning verdict, talking about soldiers “performing same-sex intercourse with their brother jawans.” But success seems less likely for him this time. There is, for one, the Supreme Court’s verdict in the Justice Puttaswamy versus Union of India case, which upheld a broad right of privacy, which would seem to make criminalising same-sex adult relations untenable. Like it has happened in Trinidad & Tobago. As Arvind Datar, one of the senior counsels, noted, earlier this year in a case in that country brought by LGBT activist Jason Jones, Justice Devindra Rampersad had struck down laws criminalising consensual samesex relations, in a decision that cited India’s privacy ruling. And if another country can use our own laws for this purpose, how can we, at the least, not do the same?

The power of the privacy ruling is probably why few opponents have entered the case this time. And it might also be why the government has said it will leave it to the court to decide on Section 377 — but only on the most basic issue of decriminalisation. On any possible further rights to LGBT people, such as partnership or inheritance, the government reserves the right to contest — an implicit warning, perhaps, to the court, to rule as narrowly as possible.

But why should it? In the restricted time give to them last week, counsel after counsel laid out the problems that LGBT people face, all deriving from criminalisation. Removing that threat from consenting adults would certainly be the start to solving the problems, but in the face of a government determined to allow only the most literal minimum, where is the guarantee that the problems will not persist?

It would be better for the court to rediscover the generosity and empathy of the Delhi High Court’s decision, and, after this 18-year battle, simply allow LGBT Indians to enjoy the same rights and lives that every Indian should have.